In some cases, it is possible to obtain a divorce in Australia without the help of a lawyer. The first step is to determine whether you are eligible to file for divorce. In other cases, it may be necessary to seek legal assistance, especially if there are complex financial or child custody issues involved.
In this article, we will discuss the process of obtaining a divorce in Australia without a lawyer. Read on to learn more.
Divorce Application Made Easy
Divorce refers to the legal end of a marriage and is ONLY possible if there is no reasonable hope that the couple will reconcile. In Australia, divorces are granted under a ‘no fault’ policy, meaning neither spouse needs to prove wrongdoing on behalf of the other in order for divorce proceedings to commence.
The Court has the power to grant divorces under Part VI of the Family Law Act 1975. However, a divorce does not determine child custody, support payments, property division or spousal maintenance — it is simply legal confirmation that the marriage is over.
Do it yourself filling out the divorce application is available on the Federal Circuit Court website. The application is made by completing an online form that asks for basic information about you, and your spouse. You must register first and compile all the necessary documents before you can lodge your application.
When you have completed the online form you will need to print this out and sign it in front of a JP or a lawyer before scanning and lodging the signed document. If you have to serve your ex that will involve lodging an affidavit of service too. Once all documents necessary have been lodged and the court’s filing fee has been paid, the Court will then review your application and decide whether to grant the divorce.
Sole Vs. Joint Divorce Application: What’s the fastest and least time-consuming way to get a divorce?
We all want what’s best for us, and when it comes to divorce, that usually means making the process as quick and painless as possible.
There are two ways to file for divorce in Australia: sole application and joint application.
A sole application can be made by either party without involving the other spouse. The party who makes a sole application is known as the applicant, with the other being designated as respondent. If you are filing a sole application, you must serve the other party notice of the divorce proceedings and a copy of all of the documents filed plus any prescribed court information.
You have the option to serve your divorce documents to your spouse by post or in person. If you cannot manage to serve them yourself, then you must ask the Court for a condition of service order. Bear in mind you will need to lodge an affidavit of service proving that the papers have been provided to the other party. Sometimes serving by post may be difficult if your ex won’t sign and return the necessary acknowledgement.
A joint application, on the other hand, is one where both spouses file the application together. For a joint application, both parties are known as joint applicants. This type of application is usually processed faster as there is no need to serve the documents since both parties have agreed to apply for divorce.
If you and your spouse agree that you want a divorce, then a joint application is the best option as it will be the quickest and easiest way to obtain a divorce. It cuts the servicing time (and eliminates the costs of any process server) since there’s no need to serve the other party. If you cannot agree on applying for divorce or there are complicated financial or child custody issues, then you may need to seek legal advice and file a sole application.
The Federal Circuit and Family Court of Australia (FCFCOA) website has a flowchart that shows you how to apply for a divorce, depending on whether you’re doing it as a joint application with your spouse or a sole application. The flowchart also includes checklists of key documents you may need to provide the Court and timelines from separation to finalising the divorce.
The Complexities Of Divorce
The Federal Circuit and Family Court strives to give individuals the chance to manage the process themselves if they feel confident, and the resources available in its website are incredibly useful. Lots of people going through divorce proceedings without a lawyer have used these resources successfully. However if you are uncertain either about the process or the possible implications of a divorce, it is always best to consult with a Family Lawyer.
When it comes to the legal aspect of divorce, these can only be assessed on a case by case basis. No two relationships are the same. Some divorces are straightforward and amicable, while others are more complicated due to issues such as children or finances.
Below are some intricate cases wherein the assistance of a lawyer might be needed:
- If you are filing a sole divorce application and your spouse opposes it
- If you got married overseas
- If your marriage certificate is written in non-English
- If there are any children of the marriage under 18
- The kind of living arrangements you had during the 12 months before you got divorced, including whether any part of that period was spent under the same roof
- If you and your spouse have decided to live separately for a certain period of time during the 12 months after your separation
- If you haven’t been married for 2 years before you want to apply for divorce
- If you are concerned about time limits in relation to financial matters including matrimonial property and or spousal maintenance
If not carefully dealt with including proper consideration of the legal implications, do-it-yourself divorces may have a few drawbacks that could ultimately lead to the court refusing the divorce petition. Such pitfalls include:
- If your application is not complete or lacks certain requirements
- If you are filing a sole application, double-check that you have completed all the necessary documents and that they have been served correctly following the Family Law Rules
- If the other party cannot be located or is evading service
- If the respondent files a response disagreeing with the divorce
- when the arrangements for where the children will live causes difficulties
Do-it-yourself filing may be a suitable option if you and your spouse are in agreement that you both wish to apply for a divorce order. However, if there are any potential complications, or if children or finances are involved, it is always best to seek professional legal advice so that your case will have more chance of a better outcome.
Having a competent lawyer at your disposal gives you the best chance to obtain a favourable outcome, especially if your divorce is complex or if there are issues to do with children and money to resolve. A lawyer can also take on the burden of all of the paperwork and they can communicate directly with your spouse or their lawyer, saving you a lot of time, effort, and emotional stress.